2024 (3) TMI 438 - HC - GST

Subsequent initiation of the proceedings under Section 74(1) of the C.G.S.T Act - petitioner discharged his entire tax liability along with the accrued interest immediately upon the finding of the audit team having been made available to the petitioner - Irregular availment of Input Tax Credit - suppression of facts or not - Availability of a statutory alternative remedy of appeal - HELD THAT - The fact which needs to be considered is that admittedly there was some wrongly availment of I.T.C. by the petitioner in respect of certain exempted tax. This fact was highlighted in the provisional audit report which has been made available to the petitioner by the audit team. The said provisional report was served upon the petitioner on 14.10.2021. The petitioner accepting the said finding immediately discharged the tax liability along with the accrued interest on 28.10.2021, i.e., within a span of around two weeks time, which was much thereafter that the petitioner s audit report was published on 10.11.2021 and where in the audit report itself it has been highlighted that the petitioner has since cleared off all the tax liability and has also paid the relevant interest also up to date. Admittedly, the show cause notice was thereafter has been issued much thereafter on 20.04.2022. Admittedly in the instant case, the show cause notice was issued on 20.04.2022, however, during the course of the audit itself certain discrepancies were pointed out by the audit team. Even much before of the final audit report being published, the petitioner is said to have paid the entire tax liability along with the updated interest on 28.10.2022. In the said circumstances, the case of the petitioner is one which that would fall strictly under Sub-Sections (5) and (6) of Section 73 where it has been emphatically laid down by the law makers that any person chargeable with tax, if he pays the amount of tax along with the interest payable there on, proper officer upon receipt of such information shall not initiate any further proceedings under Sub-Section (1) and all the proceedings shall have to deemed to be concluded. Applicability of Section 74 would come into play only if the conditions stipulated in Section 73 has not been met with by the taxpayer i.e. to say in the event if the conditions stipulated in Sub-Section (5) of Section 73 is not honored by the taxpayer in spite of the tax liability being brought to his knowledge - Further, keeping in view the provisions of Sub-Sections (5) and (6), it will go to establish that once having discharged their tax liability also by paying interest on the said tax payable, then no further proceedings could be drawn for the same tax any further. The attempt of the learned Senior Standing Counsel trying to bring the conduct of the petitioner within the purview of fraud, misstatement and suppression of fact would not be sustainable and the said contention stands negated by the Bench simply for the reason that Sub-Section (1) of Section 73 permits a taxpayer to even clear wrongly availed I.T.C. and also wrongly utilized I.T.C. and it is this what is alleged against the petitioner of having wrongfully and irregularly availed I.T.C. The action on the part of the respondents in initiating the show cause proceedings under Section 74 and passing of the impugned order dated 15.11.2023 both would be in excess of their jurisdiction and the same therefore deserves to be and are accordingly set-aside / quashed. Availability of a statutory alternative remedy of appeal - HELD THAT - Since the challenge to the impugned order in original and the show cause notice at the first instance itself is not sustainable in the eye of law in terms of Sub-Sections (5) and (6) of Section 73. The petitioner cannot be forced to undergo the entire process of litigation under the statute once when the issuance of show cause notice itself was per se bad and since it is a case of excess of jurisdiction exercised by the respondents, the petitioner has a right to avail a Writ remedy rather than undergoing the process of appeal, revision etc. under the statute. Petition allowed.

Summary

Issues Involved:
1. Legality of proceedings initiated under Section 74(1) of the C.G.S.T. Act.
2. Applicability of Section 73(5) of the C.G.S.T. Act.
3. Availability of statutory alternative remedy.

Summary:

Legality of proceedings initiated under Section 74(1) of the C.G.S.T. Act:

The petitioner challenged the impugned order dated 15.11.2023 and the consequent demand on the grounds that the initiation of proceedings under Section 74(1) of the C.G.S.T. Act was illegal and without jurisdiction. The respondents contended that the wrongful availment of Input Tax Credit (I.T.C.) by the petitioner was a deliberate act to evade tax, invoking Section 74(1) due to elements of fraud and suppression of facts.

Applicability of Section 73(5) of the C.G.S.T. Act:

The petitioner argued that their case fell under Section 73(5) of the C.G.S.T. Act, which allows taxpayers to clear their tax liabilities along with interest before the issuance of a show-cause notice, thereby avoiding further proceedings. The court noted that the petitioner had discharged their tax liability along with interest immediately upon the audit findings being communicated and before the final audit report was published. Therefore, the court held that the case fell under Section 73(5) and that the initiation of proceedings under Section 74 was not justified.

Availability of statutory alternative remedy:

The respondents argued that the petitioner had an alternative statutory remedy available under Section 107 of the Act, which should preclude the writ petition. However, the court held that since the initiation of the show-cause notice itself was per se bad in law and an excess of jurisdiction, the petitioner was entitled to seek a writ remedy without undergoing the statutory appeal process.

Conclusion:

The court concluded that the action of the respondents in initiating proceedings under Section 74 and passing the impugned order was in excess of their jurisdiction. Consequently, the impugned order dated 15.11.2023 and the show-cause notice were set aside and quashed. The writ petition was allowed, and no costs were imposed.